Johnson memo looms as Obama tackles overhaul of air policies

The Obama administration appears ready to reverse a Bush-era EPA memorandum the provides reasons for not regulating greenhouse gas emissions from new power plants, according to environmentalists who challenged the policy.

At issue is a 19-page memo signed last December by former EPA Administrator Stephen Johnson. The memo says why the federal government shouldn't use the Clean Air Act to tackle carbon dioxide emissions (Greenwire, Dec. 19, 2008).

In its first few weeks in office, President Obama's EPA jumped on some of the Bush administration's major air policies. It has begun reviewing the Bush EPA's denial of the California waiver to regulate greenhouse gas emissions from automobiles. And last week, the administration withdrew a Bush EPA petition asking the Supreme Court to reinstate a controversial mercury rule for power plants.

The Johnson memo could be up next. The Sierra Club, the Environmental Defense Fund and the Natural Resources Defense Council sued the administration this month, asking the U.S. Circuit Court of Appeals for the District of Columbia to overturn the memo.

The groups argued that the document unlawfully tries to establish a new and binding interpretation of the Clean Air Act that violates a decision by EPA's Environmental Appeals Board, which said the agency must consider global warming emissions when issuing permits for new coal-fired power plants (E&ENews PM, Jan. 15).

Environmentalists have a Feb. 17 deadline to file a procedural motion outlining their next step challenging Johnson's memo. David Bookbinder, an attorney at the Sierra Club, said the court schedule is prompting some quick decisions within Obama's Justice Department and EPA.

"I'd imagine they are working ahead of that particular schedule," he said. "Obviously, they'll be pulling the memo. The only question is, what's the timing of it?"

NRDC senior attorney John Walke said last week's announcement concerning the mercury rule "is such an intriguing indication that this administration is prepared to use these pending lawsuits to allow changes in direction."

Industry attorney Jeff Holmstead, who served as the chief of EPA's air office during the Bush administration, said he would be surprised from a legal standpoint if the agency took immediate action to reverse the Johnson memo.

Rather, he said, the administration is more likely to issue an endangerment finding, a long-sought document that makes the connection between greenhouse gas emissions and threats to public health or welfare.

"I wouldn't be surprised to see them propose an endangerment finding, which is certainly helpful to them but doesn't have any immediate consequences," Holmstead said.

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